Will Republicans Really Block a Supreme Court Justice Totally?

Will Republicans Really Block a Supreme Court Justice Totally?

John McCain and Ted Cruz have proposed (threatened?) to block any Supreme Court Justice nominated by President Hillary Clinton (fulfilling her Constitutional duty to do so). This raising many interesting questions, even if their plan doesn’t go forward. First of all, in the Era of Trump, even unprecedented ideas can get doubled down on and more.

According to CNN legal journalist Jeffrey Tubin, the whole Supreme Court is political, and there is no legal requirement for the Senate to fill the vacancy. There is some history of the Senate rejecting appointments, when the candidates are out of the mainstream.

Clearly threatening to reject any left oriented nominee would be good conservative politics. But this seems much more than that. The Senate has spent seven months not considering a centrist, very well qualified Obama nominee Chief Judge Merrick Garland. If Clinton wins the Presidency, they still have two months to consider judge Garland, unless Obama withdraws the nomination. Was the Republican stall during the election period just a ploy, without announcing their real intransigence?

Let’s look at who is proposing this: Arizona Senator John McCain, sore loser to Obama in 2008, and chief Senate hawk; and Texas Senator Ted Cruz, black sheep of the Senate, who craves attention by shutting down the Senate.

Another odd scenario is that sore loser to Trump, Ted Cruz (remember his convention non-endorsement), might want to regain the attention after Trump exits the stage. Trump’s primary argument to evangelicals is that they need to vote for him to appoint a justice to reverse Roe vs. Wade. By Cruz’s claim to block any liberal justice forever, evangelicals no longer have to vote for Trump. Let’s see if Trump responds to this threat.

The loss to the Supreme Court of Justice Antonin Scalia, removed the second most conservative justice to Justice Clarence Thomas. Instead of conservative 5-4 rulings, the best conservatives can do now is a 4-4 tie. That means that the ruling of the last appeals court will stand, be it conservative or liberal. In practice, the court can often find a less general or strong ruling, that is more specific to the case, than just accepting the appeals court ruling. The fact that Justice Kennedy was the kingpin to occasionally rule with the liberals in let’s say humane cases, has not changed, and now gives 5-3 decisions. Chief Justice John Roberts has also rarely ruled for humane cases, as in the Affordable Care Act.

That brings us to the Republican blockage of Obama’s nominations of 77 district court justices.  Of these, 30 are listed as judicial emergencies. California central district has three vacancies, one of which is an emergency. Texas, Ted Cruz’s state, has eleven vacancies, all of which are emergencies. Florida has five vacancies, four of which are emergencies. Texas and Florida make up half of the judicial emergencies. Are these blocked waiting for a Trump victory? Will they permanently be blocked also, rather than have liberal justices in these states? Remember, that Florida splits roughly evenly in the Presidential election, meaning that there are not justices for the Democratic half of the population. A Senator is given a personal privilege of being able to block any federal judicial appointment to his or her state. Unless Republicans want a lot of liberal district or appeals court rulings standing before a 4-4 Supreme Court ruling, they are forced to continually blocking all of President Clinton’s appointments. Maybe President Obama’s appointments are more centrist, and the Senate should approve of them now.

If Clinton wins, and if the Democrats can bring the Senate to equality of 50-50, then VP Kaine can break the tie.  The Democrats have done away with the nuclear option for federal Judge appointments, so in this  case, all of their appointments can pass except for the Supreme Court justices, which are still subject to the filibuster.  We don’t know if  President Clinton would keep all of President Obama’s nominations, or change some of them.  Sen. Tim Kaine has now come out and said that with a Democratic Senate majority, if the Republicans commit to block any Supreme Court Justice nominated by Clinton, the Senate will remove the filibuster option for the Republicans.

If 40 Republicans go along with blocking all Supreme Court and District court nominations with a filibuster, they should finally lose their act of being the sole upholders of the Constitution. They should also remember that the Senate has a long memory and a penchant for quid pro quo retaliation against extreme behavior.

About Dennis SILVERMAN

I am a retired Professor of Physics and Astronomy at U C Irvine. For two decades I have been active in learning about energy and the environment, and in reporting on those topics for a decade. For the last four years I have added science policy. Lately, I have been reporting on the Covid-19 pandemic of our times.
This entry was posted in 2016 Election, Clinton, Donald Trump, Politics, Supreme Court. Bookmark the permalink.

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